British Broadcasting Corporation (bbc) v Senator Moses Masika Wetangula
The bottom line
#Kenya's Court of Appeal paused Senator Wetang'ula's defamation trial against the BBC until it decides whether the BBC can gather evidence from England.
What this practically means
#Executive summary
#Key legal issues
#Competence of an application supported by an affidavit sworn by counsel
The application is competent because counsel deposed only to matters within his knowledge as regards the Letter of Request and issues of law, falling within accepted exceptions to the bar on counsel's affidavits.
The general rule is that counsel cannot depose to contentious matters, but there is an accepted exception permitting counsel to swear to matters within their own knowledge. Counsel for the applicant deposed to the Letter of Request and the legal issues raised, which are matters within his knowledge rather than contentious factual disputes, so the challenge to the application's competence fails.
Inordinate delay in a rule 5(2)(b) application after a prior unsuccessful stay application in the High Court
Delay is measured relative to the decision challenged on appeal, and a prior unsuccessful stay application in the trial court does not constrain the Court's original and discretionary jurisdiction; three months was not inordinate.
The Court stressed that its rule 5(2)(b) jurisdiction is original and discretionary, unaffected by the earlier dismissal in the trial court. The relevant benchmark for delay is the time between the decision under appeal (the ruling dismissing stay of further proceedings, 27th November 2024) and the filing of the application (3rd March 2025) - slightly over three months, which on these facts was not inordinate.
Whether the intended appeal is arguable
The appeal is arguable because it raises bona fide issues on the lawfulness, specificity and legal foundation of the Letter of Request, including the High Court's interpretation of section 54 of the Civil Procedure Act and Order 28 rule 4.
An arguable appeal need not ultimately succeed; it need only not be frivolous and raise at least one bona fide issue. The applicant's challenge to the High Court's findings that the Letter of Request was vague and ambiguous, and its attack on the interpretation and application of section 54 of the Civil Procedure Act and Order 28 rule 4, satisfied this threshold.
Whether the appeal would be rendered nugatory absent a stay of proceedings
The nugatory consideration was satisfied because proceeding with the trial without the evidence sought could violate the applicant's non-derogable right to a fair trial under Article 25(c) of the Constitution.
Stay of proceedings is granted with circumspection because of its effect on timely dispute resolution, but rule 5(2)(b) expressly permits it and each case must turn on its own circumstances. Here, if the trial proceeded without the evidence sought and the appeal later succeeded, the trial would have been conducted in violation of the applicant's right to a fair trial, which under Article 25(c) cannot be derogated from; the balance therefore favoured a stay.
Legal principles established
#- The jurisdiction under rule 5(2)(b) is original and discretionary and is not constrained by whether the applicant has previously unsuccessfully sought stay in the trial court.
- Counsel may not depose to contentious matters but may depose to matters within his or her knowledge, an accepted exception to the bar on affidavits by counsel.
- Rule 5(2)(b) expressly empowers the Court to grant a stay of proceedings, and such applications must be determined case by case.
- An applicant under rule 5(2)(b) must satisfy both the arguability and the nugatory-consideration tests.
Court orders
#- 1.An order of stay of further proceedings in the High Court until the hearing and determination of the applicant's appeal
- 2.Costs to abide the outcome of the appeal
- On appeal from
- High Court of Kenya at Nairobi
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to order stay of proceedings pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "British Broadcasting Corporation (bbc) v Senator Moses Masika Wetangula", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2027/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.